The Power of Perspectives

Alexander Gay

Litigation

Expert shopping is an all-too-common practice that undermines the legal system as a whole. It can it result in egregious miscarriages of justice and undermines the confidence in the judicial system.

In 2015 the Supreme Court sounded warning bells on the misuse of expert evidence in its White Burgess ruling and opened the door for challenging witnesses at the voir dire stage for bias. But we have to consider more radical solutions to temper what can only be described as an unsavory practice by counsel. The manner in which expert evidence is handled in the United Kingdom offers some clues that may assist us in tracing a path forward.

The root of the problem is that we pay experts to provide testimony. When counsel do not get full co-operation, or receive evidence that is not as favourable to their case as they would like, they can move on to the next expert and bury the first expert’s conclusions in his or her files. Litigation privilege shields them from informing the court on the number of experts that have been consulted.

Litigation privilege

Lawyers are often asked whether a given communication is subject to litigation privilege. In answering this question, lawyers have to assess the facts and objectively determine whether the dominant purpose of a communication is in respect of litigation that is contemplated, anticipated or ongoing.

The issue is far more tenuous, however, in criminal matters. The question is whether all internal investigations in respect of a contemplated, anticipated or ongoing criminal investigation are privileged. Determining when litigation is being contemplated calls for different considerations that have yet to be fully considered by the courts in Canada. But a recent decision from England’s High Court recent may come as a surprise to in-house counsel who assume that litigation privilege is more encompassing than it may really be.

The basic rule is that litigation privilege applies to communications between a lawyer and third parties or a client and third parties, or to communications generated by the lawyer or client for the dominant purpose of litigation when litigation is contemplated, anticipated or ongoing.

Corporate law

The last few months have seen a great deal of activity before the courts on the issue of corporate responsibility. Plaintiffs are struggling to find different legal avenues to attribute legal responsibility between related companies. Two recent cases that have dealt with this issue are Yaiguaje v. Chevron Corporation and Garcia v. Tahoe Resources Inc. The former involves the piercing of the corporate veil, and the latter, the attribution of liability from a subsidiary to a parent company under tort law.

These cases are anchored on legal theories that are not responsive to a new modern corporate reality, where related companies act in concert as a group of companies, yet are allowed to enjoy limited liability. The challenge for the courts will be to find a legal theory that allows companies to act as legally distinct entities, and yet be accountable for the actions of related companies operating within a group of companies in certain circumstances.

Commercial disputes

Torts are what happens when one person causes a loss to another. Where they happen is an entirely different question. And it can be even trickier to figure out where a plaintiff should sue a defendant for interfering, unlawfully, in its business activities – what we call unlawful means tort. It’s a question Canadian courts have yet to resolve.

That’s because a series of events may be at play, and only one might determine where the tort happened.

It’s an issue we have mostly managed to ignore so far. In 2012 the Supreme Court in its Van Breda ruling gave us a two-stage inquiry into assessing whether a given court should assume jurisdiction over a tort. First, it’s up to the plaintiff to establish that a factor presumptively connects the litigation to the jurisdiction. That could be the location of where the tort was committed. Or it could be another connecting factor, such as where the defendant carries on business. Then, for the second part of the inquiry, it’s up to the defendant to rebut the presumption by showing that, based on the facts, the connection isn’t enough to be substantial and does not point to any real or strong relationship between the subject matter of the litigation and the forum. If the defendant is successful on this count, the court must decline on jurisdiction.

Contract law

Is it abusive for one party to an agreement to have the right to choose to pursue a claim in any competent court while the other party is bound to only one jurisdiction?

Until recently, asymmetrical jurisdiction clauses – also know as one-sided clauses – in commercial agreements have come under assault.

Fortunately, that appears to be changing.

There have been a number of court decisions, from the French courts in particular, declaring asymmetrical jurisdiction clauses to be unfair and abusive and are therefore void. These courts have held that these clauses contravene the basic procedural principle of equality of parties, where one party is granted under the agreement better opportunities to bring claims against the other.

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